SAN FRANCISCO — Less than 24 hours after California started issuing marriage licenses to same-sex couples, lawyers for the sponsors of the state’s gay marriage ban filed an emergency motion Saturday asking the U.S. Supreme Court to stop the weddings being performed in San Francisco.
Attorneys with the Arizona-based Alliance Defending Freedom claim in the petition that the 9th U.S. Circuit Court of Appeals acted prematurely and unfairly on Friday when it allowed gay marriage to resume. The court lifted a hold it had placed on same-sex unions while a lawsuit challenging the ban made its way to and through the Supreme Court.
"The Ninth Circuit’s June 28, 2013 Order purporting to dissolve the stay...is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners’ defense of California’s marriage amendment," the paperwork states. "Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system."
Alliance Defending Freedom Senior Counsel Austin Nimocks said the Supreme Court’s consideration of the case is not done yet because his clients still have 22 days to ask the justices to reconsider the 5-4 decision announced Wednesday.
The justices said Proposition 8’s backers didn’t have legal authority to defend the ban after California’s governor and attorney general declined to do so. Under Supreme Court rules, the losing side in a legal dispute has 25 days to request a rehearing.
While such requests are almost never granted, the high court said that it wouldn’t finalize its judgment in the case at least until after that waiting period elapsed. The San Francisco-based appeals court had said when it imposed the stay that it would remain in place until the Supreme Court issued its final disposition, according to Nimocks.
"Everyone on all sides of the marriage debate should agree that the legal process must be followed," Nimocks said. "On Friday, the 9th Circuit acted contrary to its own order without explanation."
Many legal experts who had anticipated such a last-ditch effort by gay marriage opponents said Friday that it was unlikely to succeed because the 9th Circuit has independent authority over its own orders, in this case its 2010 stay.
While the ban’s backers can still ask the Supreme Court for a rehearing, the 25-day waiting period is not binding on lower federal courts, Vikram Amar, a constitutional law professor with the University of California, Davis law school, said.
"As a matter of practice, most lower federal courts wait to act," Amar said. "But there is nothing that limits them from acting sooner. It was within the 9th Circuit’s power to do what it did."
The petition was submitted to Justice Anthony Kennedy, who oversees motions in cases on appeal from the 9th Circuit. Kennedy also wrote the decision on the other gay marriage case the Supreme Court handed down on Wednesday striking down the federal law that prevented the federal government from awarding spousal benefits to married gay couples.
The Supreme Court’s finding that Proposition 8’s backers lacked standing to defend it left in place a trial court’s 2010 ruling that the measure, which amended the California Constitution to limit marriage to a man and a woman, violated the civil rights of gay Californians.
Then on Friday, the 9th Circuit appeared to have removed the last obstacle to making same-sex matrimony legal again in California when it removed its hold on the lower court’s order directing state officials to stop enforcing the ban.
The two couples who sued to overturn Proposition 8 were wed in San Francisco and Los Angeles Friday. On Saturday, dozens of couples in jeans, shorts, white dresses and the occasional military uniform filled San Francisco City Hall, where 81 same-sex couples obtained marriage licenses on Friday, as clerks returned to issue more licenses.
Although a few clerk’s offices around the state stayed open late on Friday, San Francisco, which is holding its annual gay pride celebration this weekend, was the only jurisdiction to hold weekend hours so same-sex couples could take advantage of their newly restored right, Clerk Karen Hong said.
A sign posted on the door of the office where a long line of couples waited to fill out applications listed the price for a license, a ceremony or both above the words "Equality=Priceless."
"We really wanted to make this happen," Hong said, adding that her whole staff and a group of volunteers came into work without having to be asked. "It’s spontaneous, which is great in its own way."
The timing could not have been better for California National Guard Capt. Michael Potoczniak, 38, and his partner of 10 years, Todd Saunders, 47, of El Cerrito.
Potoczniak, who joined the Guard after the military’s ban on openly gay service was repealed almost two years ago, is scheduled to fly out Sunday night for a month of basic training in Texas.
"I woke up this morning, shook him awake and said, ‘Let’s go,’" said Potoczniak, who chose to get married in his Army uniform. "It’s something that people need to see because everyone is so used to uniforms at military weddings."
The Supreme Court’s decision striking down the federal Defense of Marriage Act carried extra significance for military couples such as Saunders and Potoczniak.
"It scared me, honestly, before this all happened, that something could happen to me," Potoczniak said. "Things like my body, who would take care of him, even just getting the health insurance...It gives me a lot more peace of mind to know that the Army is taking care of us."
Also waiting to wed Saturday were Scott Kehoe, 34, and his fiancee, Aurelien Bricker, 24. After finding out on Facebook that the city was issuing same-sex marriage licenses Friday, the San Francisco couple rushed out to Tiffany’s to buy wedding rings.
"We were afraid of further legal challenges in the state," Kehoe said.
Bricker is a French citizen living in the United States on a student visa, and the couple has contemplated moving to France once he completes his studies next year.
Now that the Defense of Marriage Act has been struck down and California’s gay marriage ban lifted, Kehoe can sponsor his husband for U.S. citizenship or permanent residency.
The city, home to both a federal trial court that struck down Proposition 8 as unconstitutional and the 9th Circuit, has been the epicenter of the state’s gay marriage movement since then-Mayor Gavin Newsom ordered his administration in February 2004 to issue licenses to gay couples in defiance of state law.
A little more than four years later, the California Supreme Court, which is also based in San Francisco, struck down the state’s one-man, one-woman marriage laws.
City Hall was the scene of many more marriages in the 4 1/2 months before a coalition of religious conservative groups successfully campaigned for the November 2008 passage of Proposition 8, which amended the state constitution to outlaw same-sex marriages.
Standing amid the beaming couples on Saturday, John Lewis and Stuart Gaffney of the advocacy group Marriage Equality USA looked like proud fathers. The men have been together 26 years, got married in February 2004, had their union invalidated six months later and then became one of the 18,000 couples estimated to have tied the knot in California before Proposition 8 was enacted.
"I don’t think getting a license means as much to anyone who hasn’t worked so long for it and fought so hard for it," Gaffney said. "It’s been a very long engagement."